United States District Court, D. Hawai'i
Paul Chan, Plaintiff: Elizabeth Jubin Fujiwara, Joseph T.
Rosenbaum, LEAD ATTORNEYS, Fujiwara and Rosenbaum, LLLC,
Wells Fargo Advisors, LLC, Defendant: Alyson Alexis Smith,
Darren E. Nadel, LEAD ATTORNEYS, PRO HAC VICE, Littler
Mendelson, PC, Denver, CO; Kenneth J. Mansfield, LEAD
ATTORNEY, McCorriston Miller Mukai MacKinnon LLP, Honolulu,
HI; Maria Ronchetto Harrington, LEAD ATTORNEY, Littler
Mendelson, P.C., Irvine, CA.
GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY
Oki Mollway, Chief United States District Judge.
arises out of an alleged statement by a financial
advisor's assistant to a supervisor that the financial
advisor had made an illegal trade. Whether the financial
advisor decided that he no longer wanted to work with the
assistant as a result of that complaint or whether the
decision to move the assistant to a different financial
advisor was made for other legitimate, nondiscriminatory
reasons is the question at heart of this lawsuit.
Ultimately, the assistant allegedly suffered great anxiety
and was unable to work. After the assistant had exhausted his
two years of unpaid medical leave, the company terminated
him. Whether the company was required to grant the assistant
more leave as a reasonable accommodation is another issue
before the court.
company, Defendant Wells Fargo Advisors, has moved for
respect to Count I of the First Amended Complaint, asserting
a termination in violation of public policy, the court grants
Wells Fargo summary judgment, as this portion of the motion
is unopposed. Plaintiff Paul Chan fails to show that he was
terminated in violation of public policy.
respect to Count II, asserting a violation of Hawaii's
Whistleblowers' Protection Act, section 378-62 of Hawaii
Revised Statutes, the court denies the request for summary
judgment, determining that there are questions of fact as to
whether Chan suffered an adverse employment action because he
purportedly reported an illegal trade to his employer.
respect to Count III, asserting a claim of intentional
infliction of emotional distress, the court grants summary
judgment in favor of Wells Fargo, determining that
Hawaii's workers' compensation provisions provide the
exclusive remedy for work-related injuries. If appropriate,
however, emotional distress damages may be sought as a remedy
in connection with other causes of action.
respect to Count IV, asserting a claim of punitive damages,
the court grants summary judgment in favor of Wells Fargo
because no independent claim for punitive damages exists.
However, if appropriate, punitive damages may be sought as a
remedy in connection with other causes of action.
with respect to Count V, asserting a claim of disability
discrimination, the court denies Wells Fargo's request
for summary judgment, determining that there are issues of
fact as to whether Wells Fargo engaged in the required
interactive process to determine whether it could make any
reasonable accommodation that would have allowed Chan to
return to work.
1998, Chan was hired as a client associate by Herman Ching, a
senior financial advisor at Prudential Securities. See Decl.
of Paul Chan ¶ 3, ECF No. 52-6, PageID # 985; Decl. of
Herman Ching ¶ 6, ECF No. 47-17, ECF No. 756. Chan
coordinated Herman Ching's clients and appointments for
15 years. Chan Decl. ¶ 10. Every month, Herman Ching
gave Chan an envelope containing between $100 and $1,000 to
personally thank Chan. In other words, this money came from
Herman Ching, not the company. Id. ¶ 12;
Videotaped Depo. of Paul Chan at 105-06, ECF No. 47-2, PageID
#s 393-94; Videotaped Depo. of Herman Ching at 28, ECF No.
52-2, PageID # 918; Herman Ching Decl. ¶ 17, ECF No.
47-17, PageID # 758. Herman Ching also gave Chan gifts for
special occasions like Christmas or his birthday, and
whenever Ching wanted to reward him, such as when Ching had a
good month. See Chan Depo. at 119, ECF No. 47-2, PageID #
Securities eventually became Wells Fargo. Chan Decl. ¶
2009, Chan became the primary client associate for Eric
Ching, Herman Ching's son. See Herman Ching Decl. ¶
¶ 11, 20, ECF No. 47-17, PageID # 757-59. At the same
time, Kay Yamasaki became Herman Ching's primary client
associate. Id. ¶ 20, ECF No. 47-17, PageID #
Ching continued his father's practice of giving Chan
personal cash gifts to thank Chan for his work. These gifts
came from Eric Ching's personal funds, not the
company's, see Decl. of Eric Ching ¶ 8, ECF No.
47-18, PageID # 763, and were less frequent than those from
Herman Ching, see Chan Decl. ¶ 13, ECF No. 52-6, PageID
# 986; Chan Depo. at 119, ECF No. 47-2, PageID # 397.
Ching, Eric Ching, Chan, and Yamasaki all reported to Thomas
McCarthy, a Senior Vice President--Complex Manager for Wells
Fargo. Herman Ching Decl. ¶ 13, ECF No. 47-17, PageID #
2012, one of Wells Fargo's clients called, concerned that
her required minimum IRA distribution was late. Herman Ching
told Chan that the client was unhappy. See Chan Depo. at
134-35, ECF No. 47-2, PageID # 407-08. On Friday, June 22,
2012, Chan processed the client's request for the
required minimum distribution. See Chan. Decl. ¶ 22, ECF
No. 52-6, PageID # 987. In so doing, Chan noticed that funds
were missing from the client's IRA account. Id.
¶ 23. Chan says that Eric Ching must have violated the
law by trading with the client's funds without
permission. Chan concludes this based on Eric Ching's
statement to Chan that, seeing a cash balance in the
client's account, he had made investments in what Eric
Ching called a " discretionary account."
Id. ¶ ¶ 25-28, ECF No. 52-6, PageID # 988.
In his deposition, Chan was asked whether he knew whether
Eric Ching had permission to make the trade. Chan indicated
that he did not know, but had to assume that Eric Ching had
such permission. See Chan Depo. at 148-49, ECF No. 47-2,
PageID # 409-10.
says that Yamasaki cancelled the paperwork he prepared to get
the client paid. Chan Decl. ¶ 30, ECF No. 52-6, PageID #
988. Yamasaki had processed the same paperwork, and one of
the two payment requests had to be cancelled. See McCarthy
Decl. ¶ 12, ECF No. 47-19, PageID # 770. Chan was livid
about this. He says that, because he had been verbally and
physically harassed by Yamasaki, causing him to avoid talking
with her from about 2005, he went to the copy room and
ranted. Id. ¶ 31. Not knowing that anyone else
was in the copy room, Chan complained, " What the hell
is she doing? Why is she bulldozing people? She successfully
chased away her daughter and her husband cheated on
her." Id., PageID # 989. Another staff member overheard
Chan and reported his statements to Yamasaki. Id.
Yamasaki then complained about Chan's rant to Wells
Fargo's human resource department. See id. ¶ 38,
PageID # 990.
next working day, Monday, June 25, 2012, Herman Ching told
Chan that human resources was involved and that Chan had to
leave the office and not come back until told to do so. Chan
Decl. ¶ 34, ECF No. 52-6, PageID # 989. Chan was later
told by Eric Ching to return to work the next day for a
meeting with Herman Ching and McCarthy. Id. ¶
41, PageID # 990.
Tuesday, June 26, 2012, Chan met with Herman Ching and
McCarthy separately. Chan Decl. ¶ 42, ECF No. 52-6,
PageID # 990. Chan admitted what he had said in the copy
room. Id. Chan says he explained to Herman Ching and
McCarthy what had happened before he went on his rant,
including describing the possible unauthorized trade.
Id. ¶ ¶ 42-44, PageID # 991. McCarthy, on
the other hand, says Chan only complained about
Yamasaki's conduct, not Eric Ching's. See McCarthy
Decl. ¶ 15, ECF No. 47-19, PageID #s 770-71. This is
consistent with Eric Ching's statement that he was
unaware that Chan had complained about him. See Eric Ching
Decl. ¶ 14, ECF No. 47-18, PageID # 765.
July 11, 2012, McCarthy issued Chan a formal warning for
having vented in the copy room. See ECF No. 47-20, PageID #
774. In that warning, McCarthy explained that he was moving
Chan's work area " to improve the environment and
reduce involvement with the other parties involved."
Id. In other words, McCarthy separated Chan and
Yamasaki. See McCarthy Decl. ¶ 16, ECF No. 47-19, PageID
#s 771 (" I decided to move Mr. Chan's desk away
from Ms. Yamasaki's desk. I thought that if they had more
physical distance between their work stations, it would ease
the tension between them." ).
Ching says that, by late July or early August 2012, he had
decided that he wanted a new client associate. See Decl. of
Eric Ching ¶ 11, ECF No. 47-18, PageID # 764. He
I wanted a Client Associate with more regular working hours
and the ability to meet my needs in terms of completing work
in the time period I expected the Client Associate to
complete it. I also wanted a Client Associate who took me
seriously even though I was younger and less experienced than
other Financial Advisors in the Group; and, despite the fact
I am Herman Ching's son.
Id. According to Eric Ching, by August 2012, Chan's work
performance had worsened. Ching says that, for example, Chan
no longer completed work as quickly and sometimes did not do
his paperwork at all. Id. ¶ 12, PageID #
764-65. Eric Ching says that it is common to reassign client
associates among financial advisors. Id. ¶ 18,
ECF No. 47-18, PageID # 766.
disputes Ching's statements about Chan's
unreliability. Chan says that, because he could only carry
over 5 days of vacation time, he left early on some days to
use his vacation. He says he would stay whenever Eric Ching
needed him. See Chan Decl. ¶ ¶ 63-64, ECF No. 52-6,
PageID # 994. He recalls taking time off to be with his sick
mother before she died and then taking bereavement leave.
Id. ¶ ¶ 65-68. Chan denies that he was
performing poorly, pointing out that Herman Ching praised his
work in 2012. Id. ¶ 72-75, PageID # 995. Herman
Ching described Chan's work in 2012 as "
excellent." See Videotaped Depo. of Herman Ching at 48,
ECF No. 52-2, PageID # 920.
Ching talked about changing assistants with his father, who
recommended a change to McCarthy. See Decl. of Herman Ching
¶ 22, ECF No. 47-17, PageID # 759. It was McCarthy who
made the decision to transfer Chan to another advisor.
Id. ¶ 26, PageID # 760; Chan Decl. ¶ 51,
ECF No. 52-6, PageID # 992.
August 15, 2012, Herman Ching told Chan that Eric Ching no
longer wanted to work with Chan. See Chan Decl. ¶ 49,
ECF No. 52-6, PageID # 992; Decl. of Herman Ching ¶ 26,
ECF No. 47-17, PageID # 760. Chan then became the client
associate for Thomas Lau, another financial advisor. Wells
Fargo says that Chan's pay and bonuses from Wells Fargo
remained the same. Herman Ching Decl. ¶ 29, ECF No.
47-17, PageID # 760. But Chan says that working for Lau, who
was about to retire, was not as prestigious as working for
the Chings. Chan Decl. ¶ 82, ECF No. 52-6, PageID # 996.
For his part, Herman Ching described the transfer as a good
opportunity for Chan, not a demotion. He said that, although
Lau was 84 years old, he was still working and had Chinese
clients constituting 25% to 30% of his clients. Because Chan
spook Chinese, Herman Ching thought Chan could help grow
Lau's business. See Ching Depo. at 119-20, ECF No. 52-2,
PageID # 927.
Ching says that Chan's workload also remained the same,
as he also began working for Herman Ching more. Id.
¶ 29. Although paragraph 61 of the
First Amended Complaint alleges that the transfer to Lau
caused Chan's pay to fall by over 19%, ECF No. 40, PageID
# 260, Chan explained in an interrogatory answer that this
reduction resulted from losing his " supplemental pay .
. . from no longer working with Eric Ching." ECF No.
47-16, PageID # 748. Any reduction in pay was thus related to
the loss of " tokens of appreciation" or personal
gifts from Eric and Herman Ching. See Chan Decl. ¶ 79,
ECF No. 52-6, PageID # 996.
Chan was told that he would be losing his $400 per paycheck
bonus as a result of the move, see Chan Decl. ¶ 78, ECF
No. 52-6, PageID # 996, he actually received the bonus until
he stopped working in September 2012. See Chan Depo. at 130,
ECF No. 52-4, PageID # 954. Chan says that the bonuses were
to continue only temporarily while he was transitioning to
working for Lau. Chan Depo. at 129, ECF No. 52-4, PageID #
953. Because Chan stopped working before that transitional
period ended, he did not lose out on any paycheck bonuses.
The record is not clear as to whether Lau could have asked
Wells Fargo to maintain the bonus of $400 per paycheck.
to Chan, he was " devastated" by the news that Eric
Ching no longer wanted to work with him. Chan says he took
time off, returning to work on August 21, 2012. When he
returned, both Herman and Eric Ching allegedly "
blasted" him for having jeopardized a good client. Chan
Decl. ¶ ¶ 54-55, ECF No. 52-6, PageID # 992-93.
Chan says he was then told that he no longer had access to
Herman Ching's and Eric Ching's accounts.
Id. ¶ 56.
reports that he then " went on leave from work due to
stress from work that resulted in me having major depression
and I went out on work comp." Chan Decl. ¶ 85, ECF
No. 52-6, PageID #s 996-97. Chan says that he took advantage
of a Wells Fargo policy allowing employees to take 24 months
of leave. Id. ¶ 88. Chan began his unpaid
medical leave of absence on September 28, 2012. See Decl. of
Terricia Gaines ¶ ¶ 8-9, ECF No. 47-21, PageID #
about October 8, 2012, Wells Fargo wrote to Chan to inform
him that it had received information that he was on a leave
of absence because of an on-the-job injury or illness. See
ECF No. 47-23, PageID # 789.
about December 28, 2012, Wells Fargo wrote to Chan to say
that he had exhausted his leave under the Family Medical
Leave Act. The letter mentioned that Chan's employment
was not ending and that Chan was eligible for benefits
through the balance of his approved leave, which was a
maximum of 24 months. See ECF No. 47-24, PageID # 791.
Chan requested medical leave. In response, on or about July
31, 2013, Wells Fargo sent Chan a letter stating, " To
qualify for an approved, unpaid Medical Leave, please review
and complete the steps below," including submitting a
Medical Certification Form. ECF No. 47-25, PageID # 795.
about August 9, 2013, Chan's physician, Dr. Pien, sent
Wells Fargo the requested Medical Certification Form, stating
that Chan had " anxiety attacks at work, significant
anxiety when thinking upon returning there, in Sept., 2012,
daily depression with almost daily poor appetite, insomnia,
low energy, difficulty making decisions." ECF No. 47-26,